Henry v. Missouri Pacific Ry. Co.
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 794,141 Mo.App. 351 |
| Parties | WILLIAM B. HENRY, by next friend, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. C. A. Benton, Judge.
Judgment reversed.
Martin L. Clardy and Scott & Bowker for appellant.
(1) The petition in this case states no cause of action and timely objection was made to the introduction of evidence thereunder for that reason. The petition charges that plaintiff went to the turntable at the request of Charles Scales. The duties of this man Scales are set forth in paragraph 9 of the petition. There is no allegation in the petition that Scales, a mere engine watcher, had any authority to procure the services of plaintiff or any other person to assist in the work of defendant. Without an allegation of some authority being vested in Scales to do such a thing, the petition is fatally defective. Snyder v. Railroad, 62 Mo. 413. The Snyder case has been cited in a number of cases, and always with approval. Farber v. Railroad, 116 Mo. 81; Stringer v. Railroad, 96 Mo. 299; Milton v Railroad, 193 Mo. 57; Wahl v. Transit Co., 203 Mo. 271, et seq. (2) Defendant's instruction in the nature of a demurrer should have been sustained, because there is no evidence to show any authority in Charles Scales to request assistance from plaintiff. Snyder v Railroad, 60 Mo. 413; Sherman v. Railroad, 72 Mo. 62; Springer v. Railroad, 96 Mo. 299; Walker v. Railroad, 121 Mo. 575; Morgan v. Foley, 33 Mo.App. 250; Hartman v. Muehlbach, 64 Mo.App. 565; Church v. Railroad (Minn.), 52 N.W. 647.
Miles S. Horn and Thos. J. Smith for respondents.
(1) Plaintiff's petition states a good cause of action and appellant's counsel in his criticism of the petition in this respect failed to take notice of paragraph ten of the petition, reciting that it had been the custom for years for boys of the age of plaintiff to assist the regular employees of defendant in turning this turntable, and that this was by and with the knowledge and acquiescence of defendant. (2) If it should be conceded that the evidence does not show by implication, the acquiescence of the railroad company in the employment of boys in the doing of this work, still the evidence shows without contradiction that for a period running back as much as seven years they had been so engaged and necessarily with the knowledge of the defendant's servants, whose duty it was to turn this table. Such being the fact, it was the duty of the defendant to be watchful and careful in the doing of this work so as not to injure one of whose probable presence defendant was under the circumstances bound to take notice, and whose immature judgment and want of knowledge would prevent his realizing the dangers incident to the operation of this table. Reilly v. Railroad, 94 Mo. 608; Gurley v. Railroad, 104 Mo. 228; Schmitz v. Railroad, 119 Mo. 270; Montgomery v. Railroad, 181 Mo. 502; Scullin v. Railroad, 184 Mo. 707; Stiles v. Knott, 197 Mo. 717. (3) The refusal of the court to exclude the evidence offered by plaintiff showing that boys of the age of plaintiff had been in the habit of being present and assisting in the turning of the turntable was proper, the evidence being pertinent to the question of defendant's alleged negligence, resulting in plaintiff's injury. Gurley v. Railroad, 104 Mo. supra; Fiedler v. Railroad, 107 Mo. 645; Schmitz v. Railroad, 119 Mo. 270.
This is an action for personal injury alleged to have resulted from the negligence of defendant's servants, in which plaintiff had judgment in the trial court for five thousand dollars.
Two branches of defendant's railroad enter the city of Butler. A turntable is provided for turning the engines running on one of these and known as the L. & S. branch. Defendant had a servant at that place named Scales, whose duty it was to take care of the engines after they arrived, were turned on the turntable and run out, about fifty feet, over a cinder pit. At the latter point the engineer would leave it in his charge until next day, or at least until it was to be taken on the road again. On the day of plaintiff's injury Scales asked him to go along to the turntable and help turn the engine. He went with Scales, it may be said, as a volunteer on invitation, that is to say, he said that he knew he was not employed to go and that he was not to be paid. He knew that Scales had no authority to employ him. The ground where the table was, sloped off or declined from the level from which the spur track started, so that when such track reached the table it was elevated above the surface two and a half or three feet, and the table was, of course, so constructed that the rails thereon were flush with the ends of the rails on the spur track. The engine was run onto the table and plaintiff took hold of one of the levers on one side of the table, next to the table and near the end of the track on the table, while others took hold by his side but nearer the end of the lever; others pushed at the other lever. As he walked around, approaching the end of the spur track, he noticed, as his petition states, that he could not "conveniently" walk up the incline or grade which, as already stated, held the spur track above the surface. He therefore let go the lever and seated himself on the revolving table, by springing or jumping thereon with his legs, from the knees down, hanging over the edge or side. He at first thought there would be room for his legs between the timbers at the place where the table track and the spur track would come into position. But he soon saw there was not, and says he then thought to escape the danger by drawing up his legs and did get one up but not the other, and it was caught and crushed.
The petition is framed upon the theory that if plaintiff had not been under the disability of youth his conduct would have been easily classed as contributory negligence. The face of the whole case shows this, and without the concession, the evidence establishes it without so much as a doubt.
The demurrer interposed by defendant puts before us the question whether the case made by the evidence in plaintiff's behalf was such as to make it obligatory upon the trial court to declare as a matter of law that, notwithstanding his youth, he was guilty of contributory negligence and could not recover. That children may be declared to be sui juris, as a matter of law, has been recently decided by the Supreme Court in McGee v. Railroad, 214 Mo. 530. The case may be of such nature that, though a child, his conduct, considered from the standpoint of the ordinary child, will be held to be culpable. It is said in that case that if the facts are such as to...
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